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2006 DIGILAW 435 (ORI)

ARUN KUMAR OJHA v. ASAF ALI

2006-06-20

A.S.NAIDU

body2006
( 1 ) THE petitioner is facing trial for alleged commission of offence under section 138 of Negotiable Instrument Act in ICC no. 17 of 2005 in the Court of the SDJM, keonjhar. It is submitted that he is staying at Calcutta and due to certain inadverent reason it was not possible for him to appear in Court and adduce defence evidence. Consequently the Court below closed the evidence, heard arguments but then as in absence of the petitioner Judgment could not be pronounced has kept the same in sealed cover. ( 2 ) MR. Mohapatra, learned counsel for the petitioner, submits that non-appearance of the petitioner in Court for adducing defence evidence was not intentional, but was due to certain inadvertent reasons over which he had no control and unless further opportunity is granted to him to adduce defence evidence great prejudice will be caused to him and there will be violation of natural justice. ( 3 ) THE submissions of Mr. Mohapatra are strongly repudiated by Mr. Dhal, learned counsel appearing for opposite party No. 1 -complainant. According to him enough opportunity had been given to the petitioner to adduce defence evidence but he did not avail of the same. Therefore the Court below rightly closed the evidence, heard arguments and posted the case for Judgment. At that juncture the petitioner approached this court in CRLMC No. 101 of 2006 with identical prayer as made in this case. In course of hearing of that case it was brought to the notice of this Court that though more than eight to nine adjournments had been taken by defence in the aforesaid complaint case, still it failed to adduce any defence evidence. After hearing the learned counsel for the parties this Court disposed of the CRLMC on 8-2-2006 with the following observations:-". . . . . . . . . . Be that as it may, considering the submissions, this Court feels that if the judgment is not ready, the Court below should give another opportunity to the petitioner to adduce his evidence. It is needless to say that if the judgment is ready, as has been submitted by the learned counsel for opposite party No. 2, and is kept in sealed cover, no further opportunity will be given to the petitioner and the same shall be pronounced as per law. It is needless to say that if the judgment is ready, as has been submitted by the learned counsel for opposite party No. 2, and is kept in sealed cover, no further opportunity will be given to the petitioner and the same shall be pronounced as per law. The petitioner is directed to appear in Court on 13-2-2006, failing which adequate steps shall be taken for apprehending him. "thereafter a petition was filed by the petitioner before the Court below seeking permission to adduce defence evidence, but then in view of the fact that the Judgment was ready but could not be pronounced due to absence of the petitioner, the said Court rejected the petition. ( 4 ) I have heard learned counsel for the parties and perused the materials on record. The order-sheets of the Court below reveal that evidence on the complainant's side was closed on 14th September, 2005, the accused's statement was recorded on 25th october, 2005 and the case was posted to 8th November, 2005 for defence evidence. On that date the case was adjourned on the petition filed on behalf of the petitioner seeking time. Thereafter time petitions were filed on behalf of the petitioner seeking time. Thereafter time petitions were filed on behalf of the petitioner on 25-11-2005, 28-11-2005, 30-11-2005, 3-12-2005, 17-12-2005 and 20-12-2005. The Court below taking a liberal view had granted time and posted the case to 21-12-2005 as the last chance for defence to adduce its evidence. On 21-12-2005 again time petition was filed by defence. The said petition was rejected and the case was posted for argument on 23-12-2005 when arguments were heard and the case was adjourned to 25-1-2006 for further argument. On 25-1-2006 again time was sought on behalf of the petitioner, but the Court below refused the said prayer, heard arguments and posted the case for judgment. It appears that the petitioner did not appear before the Court below on the date the case had been posted for Judgment for which the judgment has been kept in sealed cover. ( 5 ) THE conduct of the petitioner as would be evident from the facts stated in the preceding paragraph was deplorable. Time was sought on his behalf successively on eight occasions, but in spite of that the Court below accommodated him, and according to me liberally. ( 5 ) THE conduct of the petitioner as would be evident from the facts stated in the preceding paragraph was deplorable. Time was sought on his behalf successively on eight occasions, but in spite of that the Court below accommodated him, and according to me liberally. However as the petitioner did not avail of the opportunities granted to him the Court below ultimately rejected his prayer for time, closed the evidence, heard arguments and posted the case for judgment. I do not find any illegality or infirmity in doing so. Mr. Mohapatra however submits that in a haste to dispose of the case the Court below closed the evidence denuding the defence to adduce its evidence, and that the duration between the dates to which the case was adjourned was not adequate for the accused-petitioner who stays at kolkata to arrange reservation and come to keonjhar and adduce evidence. ( 6 ) LAW is well settled that an accused should not be condemned without giving him adequate opportunity. "justice Delayed is justice Denied" is an ante-thesis of "justice hurried is Justice Burried". But then the tests of reasoning and delivery of justice cannot be abstract theories. They cannot be divorced from the difficulties and needs of a litigant public. The tests thus have to be always pragmatic otherwise the same would cease to be reasonable. Thus a discretion is always left on Court concerned to be exercised in proper perspective keeping in view how far the principles of natural justice can be stretched. The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice are manifested, namely, Nemo Judex in sua Causa and audi alteram partem. The former expression deals with bias and the latter with right of hearing. The Supreme court in the famous case of Maneka Gandhi v. Union "of India, reported in AIR 1978 SC 597 , observed that natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Lord Morris in his speech in the House of Lords in Wiseman v. Borneman, 1971 AC 297, expressed :". . . . . . . . Lord Morris in his speech in the House of Lords in Wiseman v. Borneman, 1971 AC 297, expressed :". . . . . . . . . . . . . . . that the conception of natural justice should at all stages guide those who discharge judicial functions is not merely an acceptable but is an essential part of the philosophy of the law. We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for precriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only "fair play in action". Nor do we wait for directions from parliament. The common law has abundant riches : there may we find what Byles, J. called "the justice of the common law". Thus, the soul of natural justice is 'fair play in action' and that is why it has received the widest recognition throughout the democratic world. " ( 7 ) IN the present case, no doubt the past conduct of the petitioner was deplorable as stated earlier. But then he is facing a criminal charge. He stays at Kolkata and it is a well known fact that some breathing space is required to arrange reservation in train and also accommodation. Though more than eight adjournments were granted the time gap between the adjournments was short enough. In the aforesaid scenario, this Court feels that another opportunity to defend himself should be given to the accused-petitioner before pronouncement of judgment in the case. This Court is aware that if such opportunity is granted to the accused-petitioner, that may cause prejudice to the complainant who had been all along sacrosanctly and diligently pursuing the case. As a matter of equity this Court feels that if the petitioner appears before the Court below within three weeks hence and files a petition to permit him to adduce defence evidence, the said Court shall permit him to do so subject to payment of Rs. 10,000. As a matter of equity this Court feels that if the petitioner appears before the Court below within three weeks hence and files a petition to permit him to adduce defence evidence, the said Court shall permit him to do so subject to payment of Rs. 10,000. 00 (ten thousand)as cost to the complainant, and this Court directs accordingly. Keeping in view that the petitioner stays at Kolkata, this Court further directs that the Court below grant at least two weeks' time to adduce defence evidence. It is needless to say that if the petitioner fails to adduce defence evidence on the date to which the case is posted by the court below, no further opportunity shall be granted to the petitioner and the Court below shall proceed with the case and deliver the judgment in consonance with law. ( 8 ) WITH the aforesaid direction/observation the CRLMC is disposed of. Order accordingly.